(Note: This Guest Blog is the ninth of a thirteen part series on examination under oath).
“What should I say to a client before an EUO?”
This question is often posed to me by public adjusters. First, I always tell them to have the policyholder hire an attorney, as I can not stress enough that an examination under oath is a very critical point in the proceedings. Insureds may be easily tripped up by a savvy defense attorney, placing their claim in jeopardy. With that being said, there are several forms of review by which a PA may assist his/her policyholder in preparing for an EUO.
First, navigating through the post-loss obligations is essential to having any claim paid. It is also one of the chief tasks of a public adjuster. The first area in which the PA must assist the insured is in gathering the documents that are requested by the insurer. Oftentimes, policyholders will look at the list with incredulity, thinking, “What do these documents have to do with my claim?” All public adjusters reading this: do not fall into the trap of unilaterally deciding that a certain document requested is not relevant, for if you do, you may be practicing law without a license and you also may be risking the claim being denied. Believe me, as I tell my clients, “We do not want to be sitting in a courtroom waiting for a judge or jury to decide whether the claim was rightfully denied because we refused to give the carrier a piece of paper.” In addition, the documents requested are likely to be given to the carrier in discovery if suit enters litigation, so just give them the documents. I know it is not any fun to gather documents, especially with a reluctant client, but it is very important in the claim’s processing.
Second, and this too is very important: go over the estimate you generated with the policyholder. The policyholder need not understand the nuts and bolts of the estimate, just the areas of damage listed and the cause of said damage. I can not tell you how many times a client has told me he has never seen the estimate or, even worse, disagrees with the estimate as to certain areas being damaged! If an insured is confronted by the estimate during an examination and disagrees with areas listed as damaged or if the insured is asked to list all areas of damage and leaves out of his/her testimony areas included in the estimate, there will be problems. The defense attorney is likely to scream “FRAUD!” or, at the very least, say that the insured did not testify that those areas were damaged, so the carrier will not pay for them. Therefore, it is essential for every public adjuster to review the estimate with the policyholder prior to EUO.
Finally, should a public adjuster attend an EUO? There are several factors to consider. Primarily, may the PA attend an EUO? I know of no legal authority prohibiting a PA from attending. Further, the plain language of the policy usually says something to the effect of, “Upon the carrier’s request, the named insured or spouse of a named insured must submit to an examination under oath outside the presence of any other insured and sign the same.” That is pretty clear that unless the PA is somehow a named insured or spouse of a named insured, the policy makes no mention of a public adjuster’s exclusion from the EUO. But the PA must also consider being put on the spot and asked to be sworn in and answer questions under oath himself. And if the PA refuses, it looks like he is hiding something. In general, if the client will be more comfortable with the PA being present, he may want to attend.
Allow me to leave you with this caveat, however, public adjusters must be very careful not to advise a client to refuse to answer a question under oath, interpret policy language, case law, or statutes, as they would be guilty of practicing law without a license, for which their PA license could be revoked and they could suffer substantial civil penalties from the local bar association. Tune in next week insurance fans when we discuss “The Examination Under Oath is Over: What Now?”